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GOP Lawmakers lambaste DoD over shutdown furloughs

Jared Serbu reports.

The Defense Department says more than 95 percent of its civilians now are back at
work after the government shutdown furloughs that began last week. But the
Pentagon and members of Congress continue to argue over whether any civilians
needed to be furloughed in the first place.

The civilian recalls came about because of a law Congress passed and the president
signed the night the shutdown started. The single-page Pay our Military Act (POMA) provided for pay and allowances to
military members, civilians and contractors during the shutdown. It took the
Pentagon five days to arrive at
a legal interpretation of exactly who could be paid in the civilian workforce.
Several members of Congress believe DoD deliberately dragged its feet and that it
could and should have exempted all civilians from furlough from the beginning.

Rep. Mike Coffman (R-Colo.), the prime sponsor of the legislation, went so far as
to accuse DoD comptroller Robert Hale of deliberately violating the law.

"You've really compromised your responsibilities, and I think you have a
tremendous conflict of interest," he told Hale during an Armed Services Committee
hearing Thursday. "You've subordinated your responsibilities to achieve a
political objective. You went out of your way to inflict as much harm as you
possibly could, and I think you've also compromised the national security of this
country by creating such a disruption. I think it's just such an embarrassment to
this country," Coffman said as he yielded the rest of his time to the committee
chairman.

"I would like a chance to respond. I resent your remarks," Hale said. "Let the
record show that."

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Intent was unclear

Hale and DoD lawyers say the law, which gave an unspecified sum of money to pay
the salaries of civilians who the Secretary of Defense determined "are providing
support to members of the armed forces," was not exactly black-and-white.

He said it took an enormous amount of time and effort to determine which civilian
jobs that definition encompassed, and said DoD would have preferred a clearer
definition — or, better yet, that Congress prevented a shutdown in the first
place.

"First, had the Congress intended to provide recall for all civilians, it should
have said, 'Recall all civilians.' It did not," Hale said. "And perhaps more
problematic, it required that the Secretary of Defense make a determination of who
would be recalled, which our lawyers concluded clearly implied that a blanket
recall was not supported. Instead, DoD was required to conduct a review to
identify those civilians who most directly serve members of the armed forces. That
review focused on the degree to which civilians aided the morale, well-being,
capabilities and readiness of members of the armed forces."

On a related matter, several members of the committee said they were infuriated
and offended that DoD determined it could not pay death gratuities to the families
of fallen active duty servicemembers during the shutdown.

"I was shocked and angered when I learned that five of our nation's heroes died in
Afghanistan over the weekend and their families were informed that benefits could
not be paid," said Rep. Rob Wittman (R-Va.), the committee's vice chairman. "These
benefits, which fall in the category of military member pay and allowances
authorized by the legislation, provide a small amount of financial support as
families grieve so that during the most harrowing of times they can focus on what
matters most."

Hale said those missed payments were tragic, but that the law also is clear. He
said death gratuities simply were not covered under the last-minute law Congress
passed as the shutdown neared.

"We've been through this with the Justice Department, with the Office of
Management and Budget general counsel and with our own general counsel," he said.
"It's in another section of the law, separate from pay and allowances. We just
don't have the legal authority, and I don't think you want us to start going
around the law."

POMA unresolved for vendors

But the death gratuities issue now is a moo point. On Wednesday, DoD signed a deal
with the nonprofit Fisher House Foundation to cover the $100,000 payouts out of
that organization's own funds. The contract provides for DoD to reimburse the
group once Congress ends the government shutdown. And on Thursday night, President
Obama signed separate legislation that makes explicit that gratuities to
servicemembers' survivors can be paid directly from the U.S. Treasury, even during
a shutdown.